President Trump has emphasized the importance of securing confirmation of nominee Amy Coney Barrett in time to referee any election dispute; some Democrats have demanded that Barrett, if confirmed, recuse herself for this very reason. The whole situation threatens to embroil the justices in partisan politics and could cause long-term damage to the court’s reputation.
There is a way to avoid this outcome, if it comes to that.
The court could protect itself — and help reassure the country — by appointing a three-member expert panel that would consider any vote-counting challenges that come before it. The notion of this special master panel draws on a 2008 experiment conducted by Georgetown University, Ohio State University and the AEI-Brookings Election Reform Project. They held a mock trial of a hypothetical McCain v. Obama lawsuit, to test whether a deliberately neutral tribunal might enable the nonpartisan resolution of a disputed presidential election.
The model here came from arbitration between unions and management in labor disputes. A key component of labor-management arbitration is strict equality between both sides. Yes, you need a tiebreaker, requiring an odd number of arbiters.
How do you do this and still maintain evenhandedness? The simplest way is a three-member panel: Labor picks one member, management another, and the first two panelists jointly select the third. Neutrality is built into the arrangement.
Applying this formula to a disputed election, the 2008 experiment created a three-judge panel of one Republican, one Democrat and a third chosen by the first two. The consortium gave this three-judge tribunal the facts of the hypothetical McCain v. Obama case, which concerned constitutional questions similar to the ones in Bush v. Gore. (No hanging chads, but equivalent problems with provisional ballots.)
After briefs and oral argument, the trio of jurists deliberated privately, as would a court, and days later released a unanimous opinion resolving the case and explaining its reasoning. We will never know whether there was disagreement behind closed doors. The facts were designed so that the case could have gone either way. But, publicly, the three judges agreed which candidate should prevail.
It may sound far-fetched, but the Supreme Court has inherent power to come up with the same arrangement if faced with Trump v. Biden. The court routinely appoints special masters for certain cases, mostly disputes between two states, that require trial-like fact-finding. Although an election case on appeal to the Supreme Court wouldn’t require new fact-finding, it would benefit from a special master panel selected to assure an evenhanded perspective.
In theory, five justices could pick the panelists over the dissent of others. But, for this tribunal to serve its function, it would be important that the court act unanimously, so that both Democrats and Republicans are satisfied by the two panelists who, as ordered by the court, would get to select the third member.
Granted, these three arbiters wouldn’t be any smarter or more expert than the justices. Their advantage would inhere entirely in the equilateral structure of their composition. Supporters of both President Trump and former vice president Joe Biden would know their positions were equally represented, and thus neither side could dominate the panel’s deliberations. From the point of view of the justices, they could avoid getting dragged into the political muck.
The Supreme Court would retain the authority to overrule its special master panel, but presumably would think twice about doing so. If an election case were like an algebra problem, and one jurist could demonstrably prove another incorrect, then overruling a subordinate makes sense. But as the court itself in Bush v. Gore famously put it, “the problem of equal protection in election processes generally presents many complexities.”
If the law itself is vague, the risk of partiality, however unintentional, inevitably creeps in. When a structurally neutral tribunal has provided a reasonable answer on a contested issue, the justices would need to wonder whether they really were capable of providing an answer that is fairer to the two contending parties or more convincing to the country.
The court would not need to employ this surrogate in any other area of law or indeed in a future election case. But the circumstances of the current situation are unique, with the president essentially demanding that his appointee assure his reelection.
Creating this kind of strictly neutral tribunal, serving as a buffer to check all-too-human instincts of favoritism, would be the best way to protect the court from another election fiasco.